Incapacity Planning: what you need to know


The idea that you might one day lose your mental faculties and be unable to make choices is not pleasant, but ignoring it doesn’t make it go away. As a capable, rational adult, creating an incapacity plan that addresses this possibility is something you cannot, and should not, avoid. Without an incapacity plan, you make it harder for your family and loved ones should the unthinkable happen to you.

Incapacity planning is the process of addressing the possibility of becoming unable to make decisions or speak for yourself and by making choices and plans about possible financial, personal and healthcare decisions that might need to be made. Since no one other than you can really make those decisions, the time to make them is when you still have capacity. Placing the burden of making those decisions on your family members can be costly in terms of money, time and emotional stress.

A comprehensive Incapacity Plan has multiple parts including an Advance Healthcare directive (or living will), a Power of Attorney for Health Care, a HIPAA release, a Durable Power of Attorney and a Revocable Living Trust. The Trust is especially important if you are a small business owner to ensure that your family continues to receive benefits of the business. If you are single or in a relationship, these forms will give your partner and not your ex the ability to care for you. If you have minor children, or are divorced or separated from their parent, temporary and permanent Guardian nomination forms are important so that your wishes regarding the care of your kids are known or if you are travelling with your child while you become incapacitated.

Not Making a Plan Can Be More Expensive Than Making One

Example 1: You’re involved in a car crash and do have an incapacity plan.

So, let’s say you’re not married but are in a long-term relationship with a romantic partner. You hire a lawyer and create a plan that includes powers of attorney that name your partner as your financial and health care representative. A year later, you’re involved in a car crash that leaves you seriously injured and you are in a medically induced coma for several days. Because your incapacity plan names your partner as your legally appointed agent, your health care provider goes to your partner whenever there is anything to discuss about your care and treatment. Similarly, when your partner shows your bank your financial power of attorney, they have no problem allowing your partner to manage your finances and access your accounts.

Because you made your wishes clear, your parents, siblings, and friends are in no doubt about your desires. They don’t fight over who gets to make choices and can even participate in the medical decision-making process because you gave your doctors permission to discuss confidential information with them. Though your plan makes it clear that it’s your partner’s final decision that matters, your family members and loved ones can all discuss the options together, and can all be a part of the decision-making process.

Example 2: You’re in a car crash and don’t have an incapacity plan.

Now, instead of being involved in an accident with a plan in place, let’s say that you don’t have a plan. You’re left in a coma, but you have no legally enforceable directions or choices that others can rely upon. For basic healthcare decisions your doctors may, in an emergency, consult your closest family members. But, for more important decisions, one of your loved ones will have to

go to court and ask the court for an emergency guardianship and conservatorship to manage your affairs. The legal process takes time and you will incur fees and possible eviction or foreclosure while someone uses their own money to pay your bills.

And your personal relationships will suffer without clear direction from you. In cases of emergencies, family members want to do the right thing. But what is that? And what if the one person who knows you best isn’t family? Unfortunately, the law does not recognize an unmarried romantic partner’s right to make choices for an incapacitated partner. Instead, that right will likely go to your closest relative, such as your parents or siblings.

Why its important: Either You Make Your Incapacity Choices Yourself, or Someone Else Makes Your Choices for You.

In the long run, incapacity planning means either you make the choices for yourself or you allow someone else – the state – make your choices for you that will impact your family and your children. While it is upsetting to think that you might not be able to care for yourself someday, making a plan while you still can make decisions is a necessary part of life. Call me today at 505-238-8385 and let me help you protect those you love.


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